The Beleaguered Gatekeeper: Protection Challenges Posed by UNHCR Refugee Status Determination

The number of individual RSD applications received by UNHCRoffices worldwide nearly doubled from 1997 to 2001, while UNHCR'sRSD operations have been criticized for failing to implementbasic standards of procedural fairness. Yet, although thereis some literature critiquing how UNHCR determines refugee status,there is little literature examining whether UNHCR should doso, and if it should, when, where, and under what conditions. UNHCR performance of RSD poses protection challenges becauseit is founded on a basic contradiction. On the one hand, governmentaction is essential for effective refugee protection. On theother hand, UNHCR RSD is premised on at least partial governmentfailure. Neither direct concern for protection from non-refoulement norstrict legal obligations completely explain UNHCR's currentRSD activities. UNHCR's RSD activities seem best explained bywhat Goodwin-Gill has called ‘negative responsibility’,and hence can represent a risky shift of responsibility fromgovernments to the UN. At the same time, in some circumstancesUNHCR RSD substantially advances refugee rights. In order to match its actual mandate and resources, UNHCR shouldperform RSD when it can enhance the protection provided to refugeesby governments, but the activity should be more limited andconditional than it is today.     

The Relevance of the Work of the International Criminal Court to Refugee Status Determinations

This article considers the work of the International CriminalCourt (ICC) and its overlaps with refugee law and practice.It focuses on ICC complementarity determinations. These involvethe organs of the ICC considering whether a state is willingand able to prosecute individuals accused of international crimes.The article draws attention to the fact that such determinationsprovide information on the extent to which state legal systemsare functional and non-discriminatory, and thus able to ensurethat those who violate human rights are brought to justice.Such information, it is suggested, can and should be drawn uponin deciding whether there is a real chance that an applicantfor refugee status will be able to receive the protection oftheir state through its justice system. The paper draws on thisoverlap between the work of the ICC and refugee law and practiceto support its concluding recommendation that refugee practitionersshould see, and take advantage of, the overlap between the workof the ICC and refugee status inquiries. It is suggested thatthis will help to ensure that persons deserving internationalprotection get it. It will at the same time bring us anotherstep closer to the development of a fully integrated systemfor the protection and promotion of human rights.     

南非难民保护制度研究——对难民地位、权利和义务的分析

南非难民保护制度建立在南非《宪法》的基本价值基础之上,国家现行难民立法的概念明显向移民法转移。《难民法案》重构先前压制性的难民制度,代之以人权文化为基础的难民法,其颁布标志着国际法和国内法的有意识的融合,是与其宪政体制相符的。本文着眼于当前各种难民法规关于难民权利和自由的细节规定,如《联合国难民地位公约》和非洲统一组织的难民定义,重点讨论难民地位的定性、难民地位的确定和难民的权利与义务问题,并强调对难民法或者权利的任何解释都必须推进开放和民主社会下有关人格尊严、平等和自由的价值观。     

Assessing the Credibility of Refugee Applicants: A Judicial Perspective

The principal responsibility of refugee decision makers is todetermine those to whom refugee protection is owed. The mannerin which these decisions are to be made in Australia is thesubject of ongoing debate. However, that debate is not the subjectof this paper. The focus of this paper is on the credibilityassessment of refugee applicants and its principal purpose isinstructive. It is my hope that it will enhance the credibilityof credibility assessment within existing processes. Its secondarypurpose is to provide a basis from which policy makers may considerlegislative and other procedural change. It has been suggested that the ‘devil is in the detail’in refugee decision making. Working in a common law country,Australian refugee decision makers are afforded the (often binding)benefit of extensive judicial review of the refugee determinationprocess.¹ Thus, for Australian decision makers, the ‘devilin the detail’ is often to be found in a plethora of bindinglegal precedent. Accordingly, while the first part of this paperdiscusses selected matters which have facilitated the assessmentof the credibility of refugee applicants in Australia, as oneof the most authoritative domestic sources available, the secondpart of this paper principally focuses on the expressed viewsof Australian courts after examining credibility findings indecisions of the Refugee Review Tribunal.²     

Crimes of the State: The Persecution and Protection of Refugees

When refugees arrive at the borders and on the shores of the Global North they are increasingly criminalised and subject to a range of law and order type rhetoric and practices. This paper outlines an alternative criminological engagement with the condition of refugeehood that shifts the focus from the refugee to the practices of the state. First, it splices definitions of state crime with the highly legalistic refugee definition to offer alternative conceptualisations of persecution in the determination of who is accorded the legal status of refugee. Second, it applies state crime frameworks to the increasingly restrictive and punitive refugee policies of countries in the Global North. It concludes by locating theorisations of state crime within the broader project of reconceptualising notions of sovereignty.Sharon Pickering BA(Melb), MA(Soton), PhD(Melb) lectures in Criminal Justice and Criminology at Monash University Australia. She has worked with refugees and written on forced migration issues for the past five years including her recent book Refugees and State Crime (2005 Institute of Criminology Monograph Series/Federation Press).     

Refugee status determination in Australia: breaking the rules?

This article looks at the asylum regime in Australia. In particular, it evaluates the procedures that are used to assess claims for asylum and the extent to which they meet international refugee and human rights standards. The article discusses four key issues in the adjudication programme: the appointment of decision-makers to tribunals that hear refugee applications, the accessibility of the review process by asylum seekers, questions relating to the efficiency of the procedures used and the mandatory detention system. It is argued that whereas Australia is party to the main international treaties that seek to protect refugees and asylum seekers, its asylum law and policy is in many ways inconsistent with international norms. To conclude, the author proposes the observance of human rights and refugee standards by asylum states. This revised version was published online in July 2006 with corrections to the Cover Date.     

难民保护面临的国际法问题及对策

对难民提供国际保护既是人道主义的要求,也是维护国际和平与安全使然,然而拒不接受难民的趋势越来越严重。应对这一问题的法律措施,一是修改既有难民定义,扩大国际难民法的保护范围,使得各国对那些不符合既有难民定义却处于与难民同样境地的人的援助,从纯粹基于人道主义考虑的自觉自愿行为转化为法律义务。二是强调国际人权法在难民国际保护中的应有作用。将人权原理应用到难民保护领域,通过敦促国家履行国际人权保护义务来实现对难民的保护,可以克服国际难民法的固有缺陷,并强化难民国际保护的法律基础。     

Creating Legal Space for Refugees in India: the Milestones Crossed and the Roadmap for the Future

The whole of South Asia is devoid of any standards and normson any dimension of refugee reception, determination and protection.The fact that a quarter of the world's refugees find themselvesin a non-standardized, if not hostile, refugee regime is a situationwhich does not augur well for either the mandate of UNHCR orfor any civilized society. The South Asian nations have theirown apprehensions, real or imaginary, about the utility of CSR1951 to their situations. Because of historical mishaps, politicalignorance, unstable democracies and exaggerated concern overnational security, there is hardly any motivation for, or anyenvironment in which there is a possibility for, the enactmentof national legislation. Non-governmental agencies, in their own way, have been tryingto influence the States to accede to the Convention and, also,to promulgate national laws. The most noticeable contributionis the draft national law for India, ‘Refugees and AsylumSeekers Act’, discussed and approved by the Fourth InformalConsultations on Refugees and Migratory Movement Sessions intheir Dacca Session. The draft legislation has been under considerationby the Indian government for some time but the issue, nonetheless,remains both important and urgent. There is an almost completeabsence of discussion about it in any forum, even the media.This paper is an attempt to examine the provisions of the draftlaw, insofar as it conforms to the international standards,and to show where it is found wanting. The paper also evaluatesthe competence of the draft law to answer security considerationsafter 9/11. The paper suggests suitable amendments that maymake the enactment of national law a reality, so that the voidin the international regime of refugee protection can be filledeffectively and fast.     

Human trafficking: the case of Burmese refugees in Thailand

With an estimated 30 protracted refugee situations around the globe, the number of refugees finding themselves in prolonged displacement is alarming. While demarcated refugee camps are a visible component of this phenomenon, the link between protracted displacement and increased risks of human trafficking is much less evident. Within refugee camps, the lack of law and order or police protection along with the presence of large numbers of helpless people create a pool of readily available supply for those who want to exploit them. This account will discuss the conditions of displacement that contribute to human trafficking risks, particularly as they relate to the protracted refugee situation of Burmese in Thailand. The case study will be followed by a number of policy and practice recommendations for the reduction of these risks.     

Negotiating Durable Solutions for Refugees: A Critical Space for Semiotic Analysis

Despite the proliferation of specialised agencies designed to reduce the prevalence of refugees worldwide, the number of individuals fleeing persecution is increasing year on year as endemic violence in countries such as Iraq, Somalia and the Syrian Arab Republic continues. As a result, media broadcasts and political dialogues are saturated with discussions about these “persons of concern”. Fundamental questions nonetheless remain unanswered about what meaning these actors attribute to the label ‘refugee’ and what intent, other than paucity of knowledge, might be driving the term’s use or manipulation. Though this is evidently important in the public arena, where incorrect conflations fuel mistrust and misunderstandings, the ramifications of these divergent understandings at the level of multi-lateral politics have yet to be critically explored. This article applies Barthes’ theory of the multiple orders of the sign to address this. Using the case study of the negotiations preceding the invocation of the Cessation Clause for Rwandan refugees, it illustrates how the word refugee is susceptible to numerous, simultaneous understandings, and discusses the implications of these manifold interpretations for how durable solutions are envisaged and negotiated in the refugee regime. In the case of Rwandan refugees in Uganda, this has meant that over a decade of stalemated discussions between the Governments of Uganda and Rwanda and the United Nations High Commissioner for Refugees over their future have been broken by a series of bilateral concessions that, whilst diminishing the political significance attached to this protracted caseload, have failed to address the continuing precarity of their situation. By conceptualising the word refugee as a sign according to the Saussurean model of semiotics, this paper therefore argues that despite the term’s established legal-normative definition, its inherent malleability makes it susceptible to processes of political instrumentalisation. This elevates the refugee as a rhetorical figure above the refugee as a physical-legal body entitled to certain forms of assistance.     

Fear of persecution not adequate to claim refugee status

In Delgadillo v Canada, the Federal Court of Canada upheld an Immigration and Refugee Board (IRB) decision to refuse refugee status to a Mexican gay male refugee claimant because he had an Internal Flight Alternative (IFA). Although the court reached this conclusion, it nevertheless agreed that Mr Delgadillo had a legitimate fear of persecution. As well, the court made an important finding--that people in Mexico who are living with HIV/AIDS do not have an IFA.     

International Law and Administrative Insulation: A Comparison of Refugee Status Determination Regimes in the United States,Canada, and Australia

International law provides nations with a common definition of a refugee, yet the processes by which countries determine who should be granted refugee status look strikingly different, even across nations with many institutional, cultural, geographical, and political similarities. This article compares the refugee status determination regimes of three popular asylum seeker destinations—the United States, Canada, and Australia. Despite these nations' similar border control policies, asylum seekers crossing their borders access three very different systems. These differences have less to do with political debates over admission and border control policy than with the level of insulation the administrative decision‐making agency enjoys from political interference and judicial review. Bureaucratic justice is conceptualized and organized differently in different states, and so states vary in how they draw the line between refugee and nonrefugee.     

Forced Marriage as a Harm in Domestic and International Law

This article reports on our analysis of 120 refugee cases from Australia, Canada, and Britain where an actual or threatened forced marriage was part of the claim for protection. We found that forced marriage was rarely considered by refugee decision makers to be a harm in and of itself. This finding contributes to understanding how gender and sexuality are analysed within refugee law, because the harm of forced marriage is experienced differently by lesbians, gay men and heterosexual women. We contrast our findings in the refugee case law with domestic initiatives in Europe aimed at protecting nationals from forced marriages both within Europe and elsewhere. We pay particular attention to British initiatives because they are in many ways the most far-reaching and innovative, and thus the contrast with the response of British refugee law is all the more stark.     

What Happens to Law in a Refugee Camp?

How do people living in a refugee camp engage with legal practices, discourses, and institutions? Critics argue that refugee camps leave people in “legal limbo” depriving them of the “right to have rights” despite the presence of international humanitarian actors and the entitlements enshrined in international law. For that reason, refugee camps have become a highly visible symbol of failed human rights campaigns. In contrast, I found in an ethnography of the Buduburam Refugee Camp in Ghana, West Africa, that although people living as refugees faced chronic insecurity and injustice, they engaged extensively with several different facets of the law. I illuminate three interrelated dimensions of their experiences: (1) their development as international legal subjects; (2) their alienation from domestic legal institutions; and (3) their agency within the legal field. The article contributes to the research agenda on law in humanitarian settings an empirically grounded account of the subjective dimensions of legal alienation and mobilization in a refugee camp. More broadly, it contributes to international human rights debates by theorizing a mixed outcome of international human rights campaigns: the emergence of wards of international law, people deeply embedded in the international legal system, but alienated from local law.     

Refugee resettlement program and Cuban/Haitian entrant program: cash and medical assistance policies. Social Security Administration. Interim final rule

This interim final regulation amends the refugee resettlement program regulations (45 CFR Part 400) and establishes new policies on cash and medical assistance available to refugees and Cuban and Haitian entrants who are ineligible for Aid to Families with Dependent Children (AFDC), Supplemental Security Income (SSI), adult assistance (OAA, AB, APTD, and AABD) in the Territories and medicaid. The Refugee Resettlement Program (RRP) provides Federal reimbursement to States for 100 percent of the costs of cash and medical assistance provided, during the first 36 months after entry into the United States, to such refugees in accordance with applicable program rules and requirements and the administrative costs of providing such assistance. Cash assistance provided to such refugees under the RRP is termed "refugee cash assistance" (RCA); and medical assistance provided to such refugees under the RRP is termed "refugee medical assistance" (RMA). This regulation permits 100 percent Federal reimbursement for RCA and RMA for an eligible refugee for the first 18 months that a refugee is in the United States. For a refugee who has been in the U.S. more than 18 months but less than 36 months, the regulation permits a State, at its option, to seek RRP reimbursement for the cost of General Assistance (GA) provided to such a refugee.     

The Child's Right to Family Unity in International Immigration Law*

Family cohesion is crucial to refugee and immigrant children. National immigration policies frequently give discretionary preference to family reunification, but subject it to restrictions, and seldom does domestic law grant the refugee or the alien resident a right to prompt reunification with foreign family members. While recognizing a right to family life, international law did. not in the past recognize a right of entry for the alien for the purposes of family reunification. The Convention on the Rights of the Child, however, requires states to ensure the child's right to family unity and entitles all children to family reunification.     

Who are Refugees?

Hundreds of millions of people around the world are unable to meet their needs on their own, and do not receive adequate protection or support from their home states. These people, if they are to be provided for, need assistance from the international community. If we are to meet our duties to these people, we must have ways of knowing who should be eligible for different forms of relief. One prominent proposal from scholars and activists has been to classify all who are unable to meet their basic needs on their own as ‘refugees’, and to extend to them the sorts of protections established under the United Nations Refugee Convention. Such an approach would expand the traditional refugee definition significantly. Unlike most academic commentators discussing this issue, I reject calls for an expanded refugee definition, and instead defend the core elements of the definition set out in the 1967 Protocol to the United Nations Refugee Convention. Using the tools of moral and political philosophy, I explain in this article how the group picked out by this definition has particular characteristics that make refugee protection distinctly appropriate for it. While many people in need of assistance can be helped ‘in place’, in their home countries, or by providing a form of temporary protected status to them, this is not so, I show, of convention refugees. The group picked out by the UN refugee definition is a normatively distinct group to whom we owe particular duties, duties we can only meet by granting them refuge in a safe country. Additionally, there are further practical reasons why a broader refugee definition may lead to problems. Finally, I argue that rejecting the call for a broader definition of refugees will better help us meet our duties to those in need than would an expanded definition.     

Justice,Morality, and the Dehumanization of Refugees

Three studies were conducted to test the role of the dehumanization of refugees (through claims that they are immoral) in determining emotional reactions to refugees, attitudes toward refugees, and attitudes toward current refugee policy in Canada. We also examined determinants of such perceptions. In Studies 1 and 2, correlational analyses and structural equation modeling were utilized. In both studies, it was demonstrated that individuals who are higher in social dominance orientation are especially likely to dehumanize refugees, and this dehumanization leads to greater contempt and lack of admiration for refugees, resulting in less favorable attitudes toward the group and toward the nation’s current refugee policy. Study 3 was an experiment in which we examined the effects of information presented about refugees on emotions and attitudes. Results demonstrated that dehumanizing media depictions of refugees as violating appropriate procedures and trying to cheat the system cause greater contempt and lack of admiration for refugees in general, which in turn lead to less favorable attitudes toward the group and less support for the current refugee policy. Results are discussed in terms of the functions that dehumanization may serve, and potential strategies for counteracting such effects. Preparation of this article was supported by a Social Sciences and Humanities Research Council of Canada grant to the first author. Portions of this research were presented at the 2005 EAESP Small Group Meeting on Social Justice and Intergroup Conflict, Lisbon, Portugal, and at the 2005 Meeting of the European Association of Experimental Social Psychology, Wurzburg, Germany     

The Use and Misuse of 'National Security' Rationale in Crafting U.S. Refugee and Immigration Policies

Since the terrorist attacks of 11 September 2001, U.S. immigrationand refugee policy has developed based on narrow and evolvingtheories of ‘national security’. Immigration reformlegislation, federal regulations, and administrative policychanges have been justified in terms of the nation's safety.On 1 March 2003, the U.S. Immigration and Naturalization Service(INS) was folded into the massive new U.S. Department of HomelandSecurity (DHS), formally making immigration a homeland defenseconcern. Counterterror and immigration experts increasingly agree onwhat constitute effective and appropriate immigration policyreforms in light of the terrorist threat. Unfortunately, manyof the post-September 11 policy changes do little to advancepublic safety and violate the rights of refugees and asylumseekers. These include reductions in refugee admissions, thecriminal prosecution of asylum seekers, the blanket detentionof Haitians, and a safe third-country asylum agreement betweenthe United States and Canada. Other measures offend basic rightsand may undermine counterterror efforts. These include ‘preventive’arrests, closed deportation proceedings, and ‘call-in’registration programs. This article reviews post-September 11 U.S. policy developmentsbased on their impact on migrant rights and their efficacy ascounterterror measures. It argues for a more nuanced and rigoroussense of ‘national security’ in crafting refugeeand immigration policy.     

Complicity in International Criminal Law and Canadian Refugee Law: A Comparison

International criminal law is normally seen as the purview ofcriminal prosecutions, either internationally or domestically.However, international criminal law is also increasingly beingapplied in refugee law. This is because the 1951 Refugee Conventioncontains an exclusion clause prohibiting asylum seekers fromobtaining refugee status if they have committed a crime againstpeace, a war crime or a crime against humanity. Thus, refugeelaw refers back to international criminal law; however, whileinternational criminal tribunals deal with persons who bearthe greatest responsibility, in actual practice persons whohave been excluded from refugee protection have been mostlyfrom the lower echelons of organizations involved in atrocities.This article, based on Canadian case law, examines the conceptsof complicity, aiding and abetting and joint criminal enterprisefrom both an international criminal law point of view and froma Canadian refugee law angle, in order to determine whetherthese notions have similar contents in the two jurisdictions.